WASHINGTON — The company that operates Line 5 is asking a U.S. judge for a measure of certainty that its controversial cross-border pipeline won’t be shut down before it can be rerouted around an Indigenous band’s territory in Wisconsin.
Calgary-based Enbridge Inc. wants district court Judge William Conley to clarify his earlier order that the pipeline be removed within three years from land that belongs to the Bad River Band of the Lake Superior Chippewa.
New court documents filed Friday, described as “requests for clarification,” stop short of formally asking Conley to stay any shutdown orders until after Enbridge has completed efforts to detour Line 5 around band territory.
But they do argue that the company has made a valid argument that the pipeline should be allowed to continue operating, with Bad River receiving a share of the profits, until the reroute is finished.
“Enbridge respectfully maintains it has presented legal authority to delay any injunction until the reroute is operational, thereby avoiding any loss of service and resulting substantial harm to the public,” the document says.
“The court has the authority not to issue, or to stay, any injunction order to coincide with the reroute becoming operational to ensure that the public interest remains protected from substantial adverse consequences.”
The band has been fighting Enbridge in court since 2019, saying the company no longer has permission to operate on its land. Conley has given the company three years from the date of the order to finish the reroute.
Enbridge also wants to confirm whether that clock started June 16, or if the three-year timeline begins from the date of Conley’s final judgment, which is still to come, pending revisions and clarifications.
The company says the pace of the reroute project depends on when the Wisconsin Department of Natural Resources and the U.S. Army Corps of Engineers completes the permitting and approval process, expected in 2025.
The band has said it’s not satisfied with Conley’s order, which also included a profit-sharing formula and a US$5.1-million back payment, dating to when permission for the pipeline was found to have expired in 2013.
Bad River lawyers say three years is too long, given the risk of a catastrophic rupture in a key Lake Superior watershed, and the financial penalty too small to prevent Indigenous sovereignty from being further violated in the future.
Conley concluded earlier this month that a rupture of Line 5 on Bad River territory would “unquestionably” meet the definition of a public nuisance under federal law.
But he’s long been reluctant to order a shutdown, citing the risk of dire economic consequences, lingering fuel shortages in the Midwest, Ontario and Quebec and a lasting scar on Canada-U.S. relations.
Enbridge has already detailed its plans to replace the 19-kilometre stretch of pipe in question with a 66-kilometre detour for Line 5 around Bad River territory.
But the company has also said it disputes Conley’s finding that the company is trespassing and that it intends to appeal the decision, and may also seek a stay of the order pending that appeal.
Talks between Canada and the U.S. have been going on for months under the terms of the Pipeline Transit Treaty, a 1977 agreement that effectively prohibits either side from unilaterally closing off the flow of hydrocarbons.
The dispute grew more urgent back in April, when heavy spring flooding washed away significant portions of the riverbank where Line 5 intersects the Bad River, a meandering, 120-kilometre course that feeds Lake Superior and a complex network of ecologically delicate wetlands.
Environmental groups call the 70-year-old pipeline a “ticking time bomb” with a dubious safety record, despite Enbridge’s claims to the contrary.
The neighbouring state of Michigan, led by Attorney General Dana Nessel, has also been waging war on Line 5, fearing a leak in the Straits of Mackinac, the ecologically delicate waterway where the pipeline crosses the Great Lakes.
Line 5 carries 540,000 barrels of oil and natural gas liquids daily across Wisconsin and Michigan to refineries in Sarnia, Ont.
Its defenders, which include the federal government, say a shutdown would cause major economic disruption across the Prairies and the U.S. Midwest, where it provides feedstock to refineries in Michigan, Ohio and Pennsylvania.
It also supplies key refining facilities in Ontario and Quebec, and is vital to the production of jet fuel for major airports on both sides of the Canada-U.S. border, including Detroit Metropolitan and Pearson International in Toronto.
This report by The Canadian Press was first published June 26, 2023.
James McCarten, The Canadian Press
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